Activists are Wrong About How to Protect an Open Internet

Some activists are urging Congress to use a little-known procedural tool to overturn a recent Federal Communications Commission (FCC) decision called the Restoring Internet Freedom Order. This misguided approach would only handcuff the internet and saddle it with Depression-era rules that have been proven to hurt consumers.

Instead, lawmakers should ensure a free and vibrant internet through real legislation that permanently enshrines clear consumer protections, while respecting the more hands-off approach that has allowed the internet to flourish.

The FCC voted in December to repeal Title II regulations on the nation’s broadband networks, which were applied in 2015 under the Obama administration. Title II rules were created during the 1930s to regulate the telephone industry like a utility.

These rules from a time long before the internet was even imagined never made sense for governing a modern, globally connected broadband industry. And the results have been disastrous. Private investment in broadband infrastructure has fallen by more than $4 billion, leaving difficult-to-connect rural areas even more disconnected than ever.

Nevertheless, internet activists and some lawmakers have decried the repeal as an “end to the internet as we know it” – despite the FCC’s requirement that internet services providers make their open internet policies available to the public. And despite the overheated rhetoric, there’s no evidence that internet service providers have ever blocked or throttled consumer access to content.

Now these same lawmakers and activists have embarked on a quest to overturn the FCC’s December order by using what’s known as the Congressional Review Act (CRA). The CRA, which was established in 1996, gives Congress a short window to repeal a federal agency rule after it is officially published in the Federal Register. Because the FCC’s Title II order was only officially published recently, it is still vulnerable to repeal by the CRA.

The CRA requires only a simple majority in each chamber to pass – meaning that lawmakers can essentially sidestep any real debate in Congress and circumvent any public input. Because of the backdoor appearance of utilizing the CRA, it has rarely been used.

While activists have used the CRA as a rallying cry recently despite little chance of passing, the reality is that it won’t “save the internet,” as supporters have breathlessly claimed.

A CRA repeal would only perpetuate the endless regulatory back-and-forth over current internet rules. The Republican-led FCC would simply pass new rules that achieve the same result as the original order, while a future Democratic-led FCC could simply repeal those rules. It would only create a regulatory cloud over the broadband industry, stifling new investment and innovation that benefits American consumers in the meantime.

The internet has become an indispensable tool for Americans, offering pathways to personal economic growth, health-care services and a connection to the global marketplace.

It was the FCC’s misguided Title II order in 2015 that started to limit the internet’s possibilities. Congress should take action that ensures consumers can continue to access the content they want, while preventing the regulatory overreach that led to Title II rules being slapped on the internet.

Rather than “Chicken Little” rhetoric and legislative loopholes, we need commonsense congressional action that can permanently preserve a free and open internet and spark renewed investment that brings high-speed access to more Americans.

The solution isn’t a CRA repeal back to Title II regulations. Instead, we need to permanently enshrine the light-touch regulations that made the internet one of history greatest achievements of innovation and ingenuity.

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Frontiers of Freedom, founded in 1995 by U.S. Senator Malcolm Wallop, is an educational foundation whose mission is to promote the principles of individual freedom, peace through strength, limited government, ...